NON-EXCLUSIVE CONSULTANT'S AGREEMENT
Exhibit
99.2
NON-EXCLUSIVE
CONSULTANT'S AGREEMENT
This
Consultant's Agreement (this "Agreement") is made as of May 9, 2005, by and
between Trestle Holdings, Inc., a Delaware corporation (the "Company"), and
▇▇▇▇▇▇▇ & Company, LLC, a Delaware corporation (the "Consultant"). The
Consultant and the Company agree:
1.
Engagement of Consultant:
The Company hereby engages the Consultant, and the Consultant hereby accepts
such engagement, to act as the Company's advisor on a non-exclusive basis with
respect to managing the process of and assisting the Company in identifying a
buyer or strategic investor (collectively known as “Partners”) or in identifying
and securing additional long-term financing (collectively known as the
“Transaction”)
2. Consultant's
Compensation: The
Company hereby agrees to pay Consultant fees in such amount and upon such terms
and conditions as follows:
(a)
Service
Retainer.
The Consultant shall be paid a Service Retainer as consideration for services.
The Company shall pay the Consultant a non-refundable retainer of $50,000
payable upon signing.
3.
Certain Matters Relating to Consultant’s Duties:
| (a) |
The
Consultant shall (i) work with the Company to prepare business models and
valuation models based on both probable cash flows and precedent
transactions, (ii) assist the Company in the preparation of information
documents to be shared with potential Partners (iii) work with the Company
and potential Partners to structure a Transaction, (iv) identify and
screen potential Partners and (v) perform other related duties. If
determined by the Board of Directors the Consultant will help the Company
screen and negotiate an engagement with an investment banker to assist in
the process. |
| (b) |
The
Consultant shall perform its duties under this Agreement in a manner
consistent with the instructions of the Company. Such performance shall
include the delivery of information to potential interested parties,
conducting due diligence, and leading discussions with potential
interested Partners. |
| (c) |
The
Consultant has agreed to make ▇▇▇▇ ▇▇▇▇▇▇▇ available to fulfill the
Company’s obligation to ▇▇▇▇▇ ▇▇▇▇▇▇▇ until such time that that the terms
of his agreement have been fulfilled. |
| (d) |
The
Consultant shall not engage in any form of general solicitation or
advertising in performing its duties under this Agreement. This
prohibition includes, but is not limited to, any mass mailing, any
advertisement, article or notice published in any magazine, newspaper or
newsletter and any seminar or meeting where the attendees have been
invited by any mass mailing, general solicitation or advertising.
|
| (e) |
The
Consultant is and will hereafter act as an independent contractor and not
as an employee of the Company and nothing in this Agreement shall be
interpreted or construed to create any employment, partnership, joint
venture, or other relationship between the Consultant and the Company. The
Consultant will not hold itself out as having, and will not state to any
person that the Consultant has, any relationship with the Company other
than as an independent contractor. The Consultant shall have no right or
power to find or create any liability or obligation for or in the name of
the Company or to sign any documents on behalf of the
Company. |
4.
Termination
of Agreement. Either
party may terminate this Agreement by notifying the other party in writing upon
a material breach by that other party, unless such breach is curable and is in
fact cured within fifteen (15) days after such notice. This Agreement will
terminate upon completion or termination of a Transaction. The Company may
terminate this Agreement following thirty (30) days after the date hereof upon
written notice. Notwithstanding the foregoing, all provisions of this Agreement
other than Sections 1, 2, 3 and 4 shall survive the termination of this
Agreement.
5. Notices. Any
notice, consent, authorization or other communication to be given hereunder
shall be in writing and shall be deemed duly given and received when delivered
personally, when transmitted by fax, three days after being mailed by first
class mail, or one day after being sent by a nationally recognized overnight
delivery service, charges and postage prepaid, properly addressed to the party
to receive such notice, at the following address or fax number for such party
(or at such other address or fax number as shall hereafter be specified by such
party by like notice):
(a) If to the
Company, to:
▇▇▇▇▇▇▇
Dallas, Chairman of the Compensation Committee
Trestle
Holdings, Inc.
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone
Number: ▇▇▇.▇▇▇.▇▇▇▇
Fax
Number: ▇▇▇.▇▇▇.▇▇▇▇
E-mail:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
(b)
If to the
Consultant, to:
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, President
▇▇▇▇▇▇▇
& Company LLC
▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone
Number: ▇▇▇.▇▇▇.▇▇▇▇
Fax
Number: ▇▇▇.▇▇▇.▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
6. Company
to Control Transactions.
The terms
and conditions under which the Company would enter into a Transaction shall be
at the sole discretion of the Company. Nothing in this Agreement shall obligate
the Company to actually consummate a Transaction. The Company may terminate any
negotiations or discussions at any time and reserves the right not to proceed
with a Transaction.
7. Confidentiality
of Company Information. The
Consultant, and its officers, directors, employees and agents shall maintain in
strict confidence and not copy, disclose or transfer to any other party (1) all
confidential business and financial information regarding the Company and its
affiliates, including without limitation, projections, business plans, marketing
plans, product development plans, pricing, costs, customer, vendor and supplier
lists and identification, channels of distribution, and terms of identification
of proposed or actual contracts and (2) all confidential technology of the
Company. In furtherance of the foregoing, the Consultant agrees that it shall
not transfer, transmit, distribute, download or communicate, in any electronic,
digitized or other form or media, any of the confidential technology of the
Company. The foregoing is not intended to preclude the Consultant from
utilizing, subject to the terms and conditions of this Agreement, the Private
Placement Memorandum, the SB2, 8K, 10Q and 10K Filings and/or other documents
prepared or approved by the Company or outside Research Reports for use in a
Transaction. Further, the Company must approve the Confidential Memorandum
and/or Private Placement Memorandum, being prepared by the Consultant, before it
is mailed to prospective Partners.
All
communications regarding any possible transactions, requests for due diligence
or other information, requests for facility tours, product demonstrations or
management meetings, will be submitted or directed to the Company, and the
Consultant shall not contact any employees, customers, suppliers or contractors
of the Company or its affiliates without express permission. Nothing in this
Agreement shall constitute a grant of authority to the Consultant or any
representatives thereof to remove, examine or copy any particular document or
types of information regarding the Company, and the Company shall retain control
over the particular documents or items to be provided, examined or copied. If a
Transaction is not consummated, or if at any time the Company so requests, the
Consultant and its representatives will return to the Company all copies of
information regarding the Company in their possession.
The
provisions of this Section shall survive any termination of this
Agreement.
8. Press
Releases, Etc. The
Company shall control all press releases or announcements to the public, the
media or the industry regarding any Transaction or business relationship
involving the Company or its affiliates. Except for communication to Partners in
furtherance of this Agreement, the Consultant will not disclose the fact that
discussions or negotiations are taking place concerning a possible Transaction
involving the Company, or the status or terms and conditions thereof.
9. Due
Diligence:
Neither
the Company, nor any of its directors, officers or shareholders, should, in any
way rely on the Consultant to perform any due diligence with respect to the
Company. It is expressly understood and agreed that the Partners will conduct
their own due diligence on the Company and the opportunity.
10. Expenses,
Etc. The
Company will reimburse the Agent for its reasonable out-of pocket expenses
incurred in connection with its activities hereunder, upon successful
arrangement of the Transaction.
11. Compliance
with Laws. The
Consultant represents and warrants that it shall conduct itself in compliance
with applicable federal and state laws. The Consultant represents that it is not
a party to any other Agreement, which would conflict with or interfere with the
terms and conditions of this Agreement.
12. Assignment
Prohibited. No
assignment of this Agreement shall be made without the prior written consent of
the other party.
13.
Amendments. Neither
party may amend this Agreement or rescind any of its existing provisions without
the prior written consent of the other party.
14.
Governing
Law. This
Agreement shall be deemed to have been made in the State of California and shall
be construed, and the rights and liabilities determined, in accordance with the
law of the State of California, without regard to the conflicts of laws rules of
such jurisdiction.
15. Waiver. Neither
Consultant’s nor the Company’s failure to insist at any time upon strict
compliance with this Agreement or any of its terms nor any continued course of
such conduct on their part shall constitute or be considered a waiver by
Consultant or the Company of any of their respective rights or privileges under
this Agreement.
16. Severability. If any
provision herein is or should become inconsistent with any present or future
law, rule or regulation of any sovereign government or regulatory body having
jurisdiction over the subject matter of this Agreement, such provision shall be
deemed to be rescinded or modified in accordance with such law, rule or
regulation. In all other respects, this Agreement shall continue to remain in
full force and effect.
17. Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, and will become effective and binding upon the parties at
such time as all of the signatories hereto have signed a counterpart of this
Agreement. All counterparts so executed shall constitute one Agreement binding
on all of the parties hereto, notwithstanding that all of the parties are not
signatory to the same counterpart. Each of the parties hereto shall sign a
sufficient number of counterparts so that each party will receive a fully
executed original of this Agreement.
18. Entire
Agreement. This
Agreement and all other agreements and documents referred herein constitute the
entire agreement between the Company and the Consultant. Except for a certain
consulting agreement dated of even date herewith, no other agreements,
cove-nants, representations or warranties, express or implied, oral or written,
have been made by any party hereto to any other party concerning the subject
matter hereof. All prior and contemporaneous conversations, negotiations,
possible and alleged agreements, representations, covenants and warranties
concerning the subject matter hereof are merged herein. This is an integrated
Agreement.
| ▇▇▇▇▇▇▇ & Company, LLC (the "Consultant") | ||
| |
|
|
| Date: | By: | /s/ |
|
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||
| Title: President | ||
| Trestle Holdings, Inc. (the "Company") | ||
| |
|
|
| Date: | By: | /s/ |
|
▇▇▇▇▇▇▇ Dallas | ||
| Title: Chairmand of the Compensation Committee | ||